When Litigation Hands You Lemons, Make IG

There’s no time when disorganized data becomes more of a challenge than when e-discovery arises—the point at which a mess of data needs to be searched and reviewed for litigation or an investigation. The good news is that it isn’t too late to get your house in order, even after the e-discovery clock starts ticking.

You can leverage the effort of document review to make progress toward sound information governance practices. At Seyfarth Shaw, we recently walked a client through a case combining review with organizational efforts to implement positive changes without slowing down the project at hand.

Here’s what we learned.

The Case

Our client was preparing to file a lawsuit over a construction defect and performed an audit of their data to ensure preservation requirements were being followed. The audit revealed total disorganization of all of the company’s data—a situation that made everyday access difficult, but also impeded their litigation efforts and required an overly inclusive collection to ensure nothing was missed.

We loaded their entire network share—over 200 GBs—into Relativity for the case. Taking a comprehensive approach that would involve more than just keywords, we advised them to use some unique organizational tags to help them later build a folder structure for the data. We needed tags that were easy enough to keep issue and relevance coding quick and to the point, and that could walk the line between organization and effort. The goal was to enhance the time already being spent on review by making some lasting organizational decisions, not to make review more painful.

The client agreed that adding a couple of tags to consider didn’t require much additional effort—and they’d benefit in the long run by exporting the information and working with their IT team to apply the coded structure to the original sources. In the end, performing the organizational review only added a few days to our timeline.

Get Creative with Your e-Discovery Workflows

It was too late to avoid the broad collection and a lengthy review by their team, but it certainly wasn’t too late to help get their data stores back on track. Our idea was simple: as long as we have all this data in one spot, why not do more than e-discovery with it? We coordinated with their paralegals and other internal teams to accomplish both projects at once, and it made a big impact.

Even though the case is ongoing, our client has been able to apply the organizational changes we made during the early stages of review and has since seen significant improvements in their data’s organizational structure. They’ve also applied it to data added to their network share after the initial collection and have built the new structure into their data creation practices moving forward.

You can take a similar approach to mending the gaps in your IG practices during e-discovery. If you find yourself needing to perform review on a particularly messy data set, don’t just grin and bear it. Use the opportunity to make the most of your time now, and save time down the road by implementing a logical organizational structure while you’re deep in the data anyway. Better late than never.

Start Your March toward Proactive Information Governance

It’s clear that this delayed data governance can be avoided pretty easily with proper IG habits, but that requires a level of proactivity most organizations are still working to build into their everyday data practices. Truthfully, even with a policy, compliance isn’t guaranteed.

Most companies I’ve encountered have dumping grounds like this one did, so employees left to their own devices—either because the company lacks a formal policy or fails to support their staff in complying with it—will create and store data via their own methods in that open zone. The result is a highly disorganized data store that no one wants to rearrange, but that they can’t get rid of because they don’t know what’s important.

Locking down those disorganized drives is a good step toward avoiding the problem of more difficult e-discovery downstream. If you know this is a problem in your organization, you can set up a plan to remove access to the shared dumping ground and better enforce a consistent data structure. You’ll want to provide advanced notice and several reminders that the source will be deleted, as well as archive the data for a while after that deadline in case something does come up. Ultimately, though, this is a defensible way to remediate a common problem and point your employees in the right data storage direction—it will help you enforce the policy you already have or set a new policy up for success.

Richard D. Lutkus is a partner at Seyfarth Shaw’s San Francisco office, focusing his practice on information governance issues and e-discovery.